Bloody Hell: How Insufficient Access to Menstrual Hygiene ...

Texas A&M Law Review Texas A&M Law Review

Volume 6 Issue 2

3-2019

Bloody Hell: How Insufficient Access to Menstrual Hygiene Bloody Hell: How Insufficient Access to Menstrual Hygiene

Products Creates Inhumane Conditions For Incarcerated Women Products Creates Inhumane Conditions For Incarcerated Women

Lauren Shaw Texas A&M University School of Law, [email protected]

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Recommended Citation Recommended Citation Lauren Shaw, Bloody Hell: How Insufficient Access to Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, 6 Tex. A&M L. Rev. 475 (2019). Available at: https://doi.org/10.37419/LR.V6.I2.5

This Comment is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Texas A&M Law Review by an authorized editor of Texas A&M Law Scholarship. For more information, please contact [email protected].

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BLOODY HELL: HOW INSUFFICIENT ACCESSTO MENSTRUAL HYGIENE PRODUCTS

CREATES INHUMANE CONDITIONSFOR INCARCERATED WOMEN

by: Lauren Shaw*

ABSTRACT

For thousands of incarcerated women in the United States, dealing withmenstruation is a nightmare. Across the country, many female prisoners lacksufficient access to feminine hygiene products, which negatively affects theirhealth and rehabilitation. Although the international standards for the care offemale prisoners have been raised in attempt to eliminate this issue, these stan-dards are often not followed in the United States. This Comment argues thatdenial of feminine hygiene products to female prisoners violates human de-cency. Additionally, this Comment considers possible constitutional violationscaused by this denial, reviews current efforts to correct this problem, and pro-vides suggestions for possible legislative solutions.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476 R

II. THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 477 R

A. Current Practices Attack Human Dignity . . . . . . . . . . . . 477 R

B. The Harmful Effects of Denying Access to FeminineHygiene Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 R

1. Medical Risks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 480 R

2. Negative Effects on Rehabilitation . . . . . . . . . . . . . 484 R

III. GLOBAL RECOGNITION AND INTERNATIONAL

STANDARDS FOR WOMEN PRISONERS . . . . . . . . . . . . . . . . . . . 485 R

A. U.S. Noncompliance with International Standards forHuman Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485 R

B. International Standards for Women Prisoners: TheBangkok Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486 R

IV. THE U.S. CONSTITUTION: INDIVIDUAL FIXES FOR

INDIVIDUAL VIOLATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 R

A. The Constitutional Rights and Limitations ofPrisoners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 R

B. Possible Constitutional Violations: The EighthAmendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488 R

* J.D. Candidate, Texas A&M University School of Law, May 2019; B.A. inCommunication, Texas A&M University, May 2016. I would like to thank my advisor,Professor Meg Penrose, and Professor H. Brian Holland for their indispensable ad-vice and guidance during the writing and editing process, as well as the entire TexasA&M Law Review staff for their hard work and careful editing. I would also like tothank my mother and sister, Cindy Shaw and Mandy Shaw, for their endless sacrificesand support.

475DOI: https://doi.org/10.37419/LR.V6.I2.5


476 TEXAS A&M LAW REVIEW [Vol. 6

C. Deference to Prison Administration . . . . . . . . . . . . . . . . . 492 R

V. THE SEARCH FOR A SOLUTION: LEGISLATION TO

CORRECT THE INJUSTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 R

A. Current Efforts Toward a Solution . . . . . . . . . . . . . . . . . . 495 R

1. Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495 R

2. State and Local Government . . . . . . . . . . . . . . . . . . . 498 R

B. Proposed Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 R

1. Federal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 R

2. State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506 R

C. Cost of Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506 R

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507 R

I. INTRODUCTION

Pop culture has opened our eyes to women in prison. Orange is theNew Black, a fictional Netflix series about women in a corrections fa-cility, has brought viewer attention to the treatment women receive inprison.1 This newfound attention has raised awareness and opened thedialog for many women’s issues.2 But television can romanticize thereality of prison conditions, which diminishes public awareness ofother serious issues still prevalent in the prison system. For example,in Orange is the New Black, characters create makeshift shower shoesout of sanitary napkins to avoid contracting foot fungus from theprison showers.3 While this shows the innovative measures some pris-oners take to endure their confinement, it also downplays a seriousinjustice women prisoners experience. This scene portrays that all wo-men prisoners have ready access to feminine hygiene products. How-ever, that is not true.

The inaccessibility of feminine hygiene products in prison leads toresults that go beyond basic unhygienic practices. In many facilities,the distribution of these products is at the discretion of the correctionsofficers.4 Many women report that corrections officers use this discre-tion as a means of control by limiting access to feminine hygiene prod-ucts as a punishment or form of humiliation.5 Additionally, facilitiesoften sell feminine hygiene products in the commissary, but this doesnot provide adequate access because many women cannot afford topurchase them due to limited funds, increased prices, or both.6 Fur-

1. See Jane Caputi, The Color Orange? Social Justice Issues in the First Season ofOrange Is the New Black, 48 J. POPULAR CULTURE 1130, 1141 (2016).

2. See id. at 1131–32.3. Zoe Greenberg, In Jail, Pads and Tampons as Bargaining Chips, N.Y. TIMES

(Apr. 20, 2017), https://www.nytimes.com/2017/04/20/nyregion/pads-tampons-new-york-womens-prisons.html?smid=pl-share [https://perma.cc/DBE5-GB6E].

4. Id.5. Id.6. Id.


2019] CONDITIONS FOR INCARCERATED WOMEN 477

ther, even if the women can afford them, the privilege to purchaseitems from commissary can be revoked.7

Although the awareness gained from pop culture is a step in theright direction for women’s issues, prisoners’ lack of access to femi-nine hygiene products is an injustice that deserves legal attention andcorrection. When asked about the Orange is the New Black scene ofsanitary pads as shower shoes, a former prisoner said, “I’d rather getfoot fungus than waste those things. . . . I had to go to war for eachone of them.”8

This Comment argues that to correct a serious social injustice, cor-rections institutions should provide sufficient feminine hygiene prod-ucts to women prisoners at no cost. Part II of this Comment explainsthe problem with current practices and the associated risks of insuffi-cient access to feminine hygiene products. Part III examines theUnited States’ disregard for human rights and reviews the current in-ternational standard for the treatment of women prisoners. Part IVanalyzes the constitutional protections afforded to prisoners and dis-cusses the possibility of Eighth Amendment claims based on the de-nial of feminine hygiene products. Part V discusses the current effortstoward a solution to this problem and proposes principles for legisla-tion as a possible solution.

II. THE PROBLEM

A. Current Practices Attack Human Dignity

Denying women prisoners products that are necessary to managetheir menstruation can lead to unacceptable results. While not everyfemale prisoner faces this problem, many women who were deniedsufficient access to feminine hygiene products while incarcerated re-count indecent and humiliating experiences.9 For example, in a NewYork state prison, a woman who was not provided any feminine hy-giene products while she was menstruating was subjected to a stripsearch.10 While blood ran down her legs, the corrections officer be-rated her with degrading comments, including how disgusting shewas.11 In response, New York’s Department of Corrections and Com-munity Supervision announced that their policy was to provide theproducts as needed.12 In Kentucky, a woman was brought into court

7. Ben Lockhart, Some Inmates Lose Television, Spending Privileges as PrisonHunger Strike Reaches 5th Day, DESERET NEWS UTAH (Aug. 4, 2015, 9:00 PM), https://www.deseretnews.com/article/865633878/Some-inmates-lose-television-spending-privileges-as-prison-hunger-strike-reaches-5th-day.html [https://perma.cc/5ZMT-B4BE].

8. Greenberg, supra note 3.9. Id.

10. Id.11. Id.12. Id.



pantless after a corrections facility denied her pants and feminine hy-giene products for three days.13 While apologizing to the woman forwhat happened, the judge said, “this is completely inhumane and un-acceptable, and I’m incredibly sorry you had to go through this.”14

The policies related to feminine hygiene in prisons are inconsistentthroughout the criminal justice system, and specific policies for theprovision of feminine hygiene products vary greatly among facilities.15

In some prisons, the women are permitted to get pads16 themselveswhenever needed.17 However, in many facilities, guards have com-plete discretion over the distribution of feminine hygiene products.18

Policies that give correctional officers extensive control over thisdeeply personal aspect of women’s lives create easy opportunities forabuses of power. Some facilities require women to ask a guard, oftenmale, each time they need a feminine hygiene product.19 This leads tounequal treatment when guards unevenly distribute the products tospecific housing units or even specific individuals they favor.20 Addi-tionally, the unchecked discretion allows guards to deny feminine hy-giene products as a form of punishment or as a way to reinforce theirdominance over the women.21

Even when women are given feminine hygiene products, they areoften insufficient in quality, quantity, or both. Frequently, the padsthey are provided have a low absorbency and do not have wings.22

And due to limited access, women have had to wear feminine hygiene

13. Mazin Sidahmed, Woman Enters Court Without Pants After Jail ‘Fails to Pro-vide Hygiene Products’, GUARDIAN (Aug. 1, 2016, 1:23 PM), https://www.theguardian.com/us-news/2016/aug/01/louisville-jail-woman-no-pants-court [https://perma.cc/NM93-TDRF].

14. Id.15. Michael Alison Chandler, Federal Prisons Must Now Provide Free Tampons

and Pads to Incarcerated Women, WASH. POST (Aug. 24, 2017), https://www.washingtonpost.com/local/social-issues/federal-prisons-must-provide-free-tampons-and-pads-to-incarcerated-women/2017/08/23/a9e0e928-8694-11e7-961d-2f373b3977ee_story.html?utm_term=.179bda85bbc2 [https://perma.cc/LS3Q-AFEA].

16. In this Comment, I use the terms “pad,” “sanitary towel,” and “sanitary nap-kin” interchangeably.

17. Id.18. Id.19. Id.20. See Greenberg, supra note 3.21. See id.22. Kristina Marusic, The Sickening Truth About What It’s Like to Get Your Pe-

riod in Prison, WOMEN’S HEALTH (July 7, 2016), https://www.womenshealthmag.com/life/women-jail-periods [https://perma.cc/P2HE-JSRW]. Women may use varioustypes of feminine hygiene products during menstruation, such as sanitary pads,tampons, and menstrual cups. See Types of Best Feminine Hygiene Products, CURE

JOY (Feb. 28, 2017), https://www.curejoy.com/content/best-feminine-hygiene-prod-ucts/ [https://perma.cc/WBY4-5BFS]. Variations may also be found within the specifictypes of feminine hygiene products. Id. Both tampons and sanitary pads typicallycome in different sizes and levels of absorbency. Id. The products may also come withspecific features. For example, some sanitary pads have wings—extra adhesive mate-rial on the sides that fold and stick to underwear—to help secure the pad in place.



products past the recommended length of usage—to the point thatpads have slid out of their clothes onto the floor.23 It is recommendedthat women use twenty feminine hygiene products per menstrual cy-cle, but some prison policies only allot ten feminine hygiene productsper month.24 Further, women’s menstrual cycles vary in length andfrequency, so having a set allotment of products does not sufficientlyaccommodate individual needs.25 The types of feminine hygiene prod-ucts available in prison are also limited. Although many women prefertampons,26 prisons typically do not provide them.27 This grants correc-tional officers yet another opportunity to wield power over the in-mates. For example, a prisoner reported that a guard at Rikers IslandPrison “threw a bag of tampons into the air and watched as inmatesdived to the ground to retrieve them, because they did not know whenthey would next be able to get tampons.”28

Additionally, prison exacerbates the existing financial burden of ob-taining feminine hygiene products. Women—both in and out ofprison—generally agree feminine hygiene products are too expen-sive.29 The cost of managing menstruation has even gained interna-tional attention.30 In response, “[t]he United Nations has declaredmenstrual hygiene a public-health, gender-equality and human rightsissue . . . .”31 While women feel this burden internationally, it can beespecially crippling to incarcerated women.32 Feminine hygiene prod-ucts are sometimes sold at the prison commissary, but many womencannot afford them because they are expensive and the women lackfinancial resources.33 Some prisoners are employed during incarcera-

How to Use Pads, U BY KOTEX, https://www.ubykotex.com.au/femcare-products/pads/using (last visited Jan. 6, 2017) [https://perma.cc/NHF7-7DN8].

23. See Marusic, supra note 22.24. Francine Barchett, Pads in Prisons: Addressing Gender Disparities in New

York State, ROOSEVELT INST. (2017), http://rooseveltinstitute.org/wp-content/uploads/2017/05/621-1.pdf [https://perma.cc/KVB4-5M2F].

25. Id.26. Francesca Branch, Vaginal Douching and Racial/Ethnic Disparities in Phtha-

lates Exposures Among Reproductive-Aged Women: National Health and NutritionExamination Survey 2001–2004, ENVTL. HEALTH 4 tbl.1 (2015), https://ehjournal.biomedcentral.com/track/pdf/10.1186/s12940-015-0043-6 [https://perma.cc/8ZQ9-Q4J6].

27. See Barchett, supra note 24.28. Greenberg, supra note 3.29. See Susan Johnston Taylor, The Pink Tax: Why Women’s Products Often Cost

More, U.S. NEWS (Feb. 17, 2016, 11:16 AM), https://money.usnews.com/money/personal-finance/articles/2016-02-17/the-pink-tax-why-womens-products-often-cost-more[https://perma.cc/A7TS-WMTW].

30. Jennifer Weiss-Wolf, America’s Very Real Menstrual Crisis, TIME (Aug. 11,2015), http://time.com/3989966/america-menstrual-crisis/ [https://perma.cc/RM8J-P3S6].

31. Id.32. Abigail Durkin, Note, Profitable Menstruation: How the Cost of Feminine Hy-

giene Products is a Battle Against Reproductive Justice, 18 GEO. J. GENDER & L. 131,159–61 (2017).

33. See id. at 161.



tion, but there are not always enough jobs for everyone.34 Further, insome states, all prison jobs are unpaid.35 The women who have payingjobs while incarcerated earn far below minimum wage—on average75¢ per day.36 This makes it very difficult to afford feminine hygieneproducts. For example, a box of ten tampons at the Nebraska Correc-tional Center for Women costs up to $2.34, depending on the size.37

At this price, it would take an incarcerated woman earning the na-tional average more than three days to afford one box of tampons.Further, a recent report from the ACLU of Nebraska showed thisprice of tampons was 20% to 50% higher than the price outside ofprison.38 Corrections facilities treat feminine hygiene products as lux-ury items rather than basic human necessities.39

B. The Harmful Effects of Denying Access to FeminineHygiene Products

1. Medical Risks

Rather than bleeding through their clothes, which happens fairlyoften,40 many women in prison turn to alternative methods of control-ling their menstruation. Women report wearing multiple hygieneproducts at once for extended periods of time or using bunches oftoilet paper, which is also rationed.41 Others have even resorted tomaking tampons out of mattress stuffing.42 While women who usethese alternative measures avoid walking around in bloody clothes,they often subject themselves to something even worse—serioushealth risks.

34. Wendy Sawyer, How Much Do Incarcerated People Earn in Each State?,PRISON POL’Y INITIATIVE (Apr. 10, 2017), https://www.prisonpolicy.org/blog/2017/04/10/wages/ [https://perma.cc/D92T-RAAQ].

35. Id. In Alabama, Arkansas, Florida, Georgia, and Texas, there is no pay forregular prison jobs. Id.

36. See Durkin, supra note 32, at 161.37. Let Down and Locked Up: Nebraska Women in Prison, ACLU NEB. 10 (Oct.

19, 2017), https://www.aclunebraska.org/sites/default/files/field_documents/women_in_prison_2017_10.pdf [https://perma.cc/33XU-LTFB]. The Nebraska CorrectionalCenter for Women no longer offers these escalated prices due to an ACLU investiga-tion which caused the Nebraska Department of Correctional services to make a policychange. See infra notes 227–32 and accompanying text.

38. Grant Schulte, Nebraska’s ACLU: Prisons Charge Inmates Too Much forTampons, ASSOCIATED PRESS (Oct. 19, 2017), https://www.apnews.com/84074541703c4b21bc194176b6823651 [https://perma.cc/6CRV-FUHD].

39. Id.40. See Marusic, supra note 22.41. Angelika Schlanger, One Woman’s Experience: What It’s Like to Have Your

Period in Prison, BROADCAST (Nov. 30, 2016), https://www.mylola.com/blog/one-womans-experience-like-period-prison/ [https://perma.cc/2EXA-TZFB].

42. Rachel Baye, State Lawmakers Seek to Give Tampons to Prisoners, WYPR(Feb. 13, 2018), http://wypr.org/post/state-lawmakers-seek-give-tampons-prisoners[https://perma.cc/TN4G-RGTG].



Throughout the world, the options women have to manage their pe-riod vary drastically depending on their economic status and the re-sources available to them.43 Due to the restrictive conditions ofprison, the methods that women resort to are often unhygienic andcarry serious risks.44 Most recent research on the risks of menstrualhygiene mismanagement focuses on developing countries because thescientific community considers affluent countries to have alreadysolved this problem.45 But many women in America, especially thosewho are incarcerated, are still exposed to similar risks because of inad-equate menstrual hygiene management.46

Studies show that insufficient menstrual hygiene management in In-dia is linked to increased chances of developing cervical cancer.47 Thisis particularly concerning considering the similarities between themenstrual hygiene practices of women in developing countries and in-carcerated women. Just like many women in United States prisons,women in Tanzania and Nigeria often must use toilet paper as a meansto control their menstruation.48 Further, women in both Americanprisons49 and developing countries often use unwashed rags to controltheir menstruation, which can cause an abundance of infections.50

Similarly, a Connecticut woman prisoner was not provided femininehygiene products and had to resort to using her sock.51 In addition totoilet paper or mattress stuffing, women prisoners have reported roll-ing up pads and using them as makeshift tampons.52 Women who areunable to remove this sort of “tampon” place themselves in danger ofdeveloping many health conditions.53 Thus, the alternative methodsused by women in prison, similar to the unhygienic practices of wo-men in developing countries, creates many unnecessary health risks.

The increased health risks that incarcerated women take to managetheir periods can have dire consequences. Throughout their develop-ment, tampons have been associated with serious health risks when

43. Colin Sumpter & Belen Torondel, A Systematic Review of the Health and So-cial Effects of Menstrual Hygiene Management, PLOS 1 (Apr. 26, 2013), https://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0062004&type=printable[https://perma.cc/Z5FC-GP6E].

44. Weiss-Wolf, supra note 30.45. Anne Sebert Kuhlmann et al., Menstrual Hygiene Management in Resource-

Poor Countries, 72 OBSTETRICAL & GYNECOLOGICAL SURV. 356, 356 (2017).46. Weiss-Wolf, supra note 30.47. Id.48. Sumpter & Torondel, supra note 43.49. Baye, supra note 42.50. Weiss-Wolf, supra note 30.51. Victoria Law, A New Memo Orders Federal Prisons to Provide Tampons—But

How Well Is It Being Followed?, REWIRE NEWS (Oct. 23, 2017, 4:52 PM), https://rewire.news/article/2017/10/23/new-memo-orders-federal-prisons-provide-tampons-well-followed/ [https://perma.cc/VP4U-SNSS].

52. Id.53. Id.



used improperly.54 Specifically, improper tampon use is largely associ-ated with Toxic Shock Syndrome (“TSS”).55 TSS results from bacterialinfections and can cause fever, low blood pressure, vomiting, seizures,shock, renal failure, and even death.56 Increased awareness of the dis-ease and its relation to tampon misuse has lowered the frequency ofTSS in the United States.57 For example, it is now recommended thatwomen change their tampons at a minimum every four to eighthours.58 The prohibition against manufacturers using certain materialsin tampons has also lowered the prevalence of the disease.59 While theincidence of TSS has significantly decreased, it is a result of betterregulations on tampons and an increase in their proper usage.60 Butimproper tampon use can still cause TSS, and the consequences canbe critical.61

For example, in 1975 a tampon called Rely was made with an ex-tremely absorbent synthetic material, carboxymethycellulose(“CMC”).62 Rely’s marketing, which publicized the extended lengthof time that a woman could use just one tampon, caused some womento use only one Rely tampon for their entire period.63 Other countriesbanned Rely tampons due to their inclusion of harmful chemicals suchas CMC, but they became surprisingly popular throughout the UnitedStates.64 Although Congress decided to impose stricter regulations ontampons in 1976, Rely had already begun testing, so it was allowed instores without meeting the new standards.65 By 1980, almost 25% ofwomen were using Rely.66 In response to Rely’s popularity, othertampon manufacturers began to introduce similar products.67

From October 1979 to May 1980, there were fifty-five cases of TSSnationwide, seven of which were fatal.68 In response, the Centers forDisease Control and Prevention (“CDC”) investigated, later reporting

54. Ashley Fetters, The Tampon: A History, ATLANTIC (June 1, 2015), https://www.theatlantic.com/health/archive/2015/06/history-of-the-tampon/394334/ [https://perma.cc/ZTF5-NKBK].

55. Id.56. Toxic Shock Syndrome, MAYO CLINIC, https://www.mayoclinic.org/diseases-

conditions/toxic-shock-syndrome/symptoms-causes/syc-20355384 (last visited Mar. 11,2018) [https://perma.cc/TV54-C6B5].

57. Tracee Cornforth, How to Reduce Your Risk of Toxic Shock Syndrome, VERY

WELL HEALTH (Oct. 17, 2018), https://www.verywellhealth.com/how-to-reduce-your-risk-of-toxic-shock-syndrome-3521119 [https://perma.cc/Q5MH-ANDC].

58. Toxic Shock Syndrome, supra note 56.59. See id.60. See id.61. Cornforth, supra note 57.62. Fetters, supra note 54.63. Id.64. Id.65. Id.66. Id.67. Id.68. Id.



that there was a link between the use of tampons and TSS.69 Three-quarters of the women who developed TSS had used Rely tampons.70

Rely was taken off of the shelves after the CDC’s report, but it wastoo late. By the end of 1980, there were 812 reported cases of TSS;thirty-eight were fatal.71 By 1983, there were more than 2,200 reportedcases.72

Although it was too late to keep Rely off the shelves, tampons be-came safer when Congress amended the Federal Food, Drug, and Cos-metic Act (“FDCA”). The FDCA grants the Food and DrugAdministration (“FDA”) broad regulatory authority, including the au-thority to regulate medical devices.73 In 1976, Congress enacted theMedical Device Amendments (“MDA”) in response to public concernabout dangerous medical devices.74 Under the MDA, all medical de-vices must be classified into three categories (Class I, Class II, andClass III), and regulations are imposed based on the classification.75

Originally, tampons were merely cosmetics under the FDCA, butunder the MDA, they were reclassified as a Class II medical device.76

This elevated classification requires “special controls” in addition tothe “general controls” Class I devices require77 because the generalcontrols alone are insufficient to ensure the device is safe.78

Stricter regulations and public awareness of the risks of misusingtampons have decreased TSS cases, but incarcerated women still facethese risks because of the alternative methods they use.79 For exam-ple, due to the low quality of the feminine hygiene products in prison,some women use three tampons at a time.80 Additionally, some wo-men in prison do not change tampons as often as recommended in aneffort to extend their use of such a scarce and costly product, thusincreasing their risk of developing TSS.81

69. Id.70. Id.71. Id.72. Id.73. Jamie Kohen, The History of the Regulation of Menstrual Tampons, DIGITAL

ACCESS TO SCHOLARSHIP AT HARV. 3 (Apr. 6, 2011), https://dash.harvard.edu/bitstream/handle/1/8852185/Kohen.pdf?sequence=1 [https://perma.cc/B26K-5DS7].

74. Id.75. Id. at 4.76. See Fetters, supra note 54; see also Kohen, supra note 73, at 4–5.77. Kohen, supra note 73, at 5. Class I devices are subject to general controls.

Classify Your Medical Device, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/Overview/ClassifyYourDevice/default.htm (last visited Jan. 19, 2018) [https://perma.cc/PXT7-UVRN]. Class II devices aresubject to general controls and special controls. Id. Class III devices are subject togeneral controls and premarket approval. Id.

78. 21 U.S.C. § 360c(a)(1)(B) (2012).79. See Schulte, supra note 38.80. Marusic, supra note 22.81. Schulte, supra note 38.



In addition to the risks women face from improperly using tamponsor alternative imitations, prisoners improperly using pads are also sub-ject to increased health risks.82 Sanitary pads, which are also classifiedas medical devices and regulated by the FDA,83 pose a health riskwhen they are not changed regularly.84 Wearing sanitary pads for ex-tended periods of time can cause many bacterial infections, specifi-cally vaginal yeast infections.85 To lower the risk of infection, it isrecommended that women change their pad every four hours.86 This isobviously not possible for women prisoners when facilities only pro-vide ten or fewer pads per month, and the average period lasts two toseven days.87

2. Negative Effects on Rehabilitation

Lack of access to feminine hygiene products interferes with a pris-oner’s rehabilitation. In developing countries, many young women donot go to school when they are menstruating due to the embarrass-ment that would result from attending without adequate feminine hy-giene products.88 Similarly, in the United States, many incarceratedwomen’s rehabilitation is disrupted because they lack access to femi-nine hygiene products.89 For example, a Brooklyn public defender tes-tified to the New York City Council that an inmate at Rikers IslandPrison who lacked access to feminine hygiene products asked her so-cial worker not to meet with her during the inmate’s period to avoidthe shame and embarrassment of bleeding through her clothes duringtheir meetings.90 Additionally, women have declined to visit with theirfamilies and attorneys because the women were on their periods.91

Visitation is extremely beneficial for lowering recidivism,92 and pris-

82. How Often Should I Change My Pad, PANTYPROP (May 6, 2016), https://www.pantyprop.com/single-post/2016/05/06/How-Often-Should-I-Change-My-Pad [https://perma.cc/S8A8-LN3N].

83. U.S. FOOD & DRUG ADMIN., GUIDANCE FOR INDUSTRY AND FDA STAFF—MENSTRUAL TAMPONS AND PADS: INFORMATION FOR PREMARKET NOTIFICATION

SUBMISSIONS (510(K)S) 6 (2005), https://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/ucm071799.pdf [https://perma.cc/HH9C-VLK3]. Sanitary pads are considered a Class I medical device. Id.

84. How Often Should I Change My Pad, supra note 82.85. See id.86. Id.87. Barchett, supra note 24.88. Every Woman’s Right to Water, Sanitation and Hygiene, UNITED NATIONS

HUM. RTS., http://www.ohchr.org/EN/NewsEvents/Pages/Everywomansrighttowatersanitationandhygiene.aspx (last visited Nov. 11, 2017) [https://perma.cc/SH6W-KG6H].

89. Greenberg, supra note 3.90. Id. Subsequently, New York City passed a law that requires their city correc-

tions facilities to provide feminine hygiene products for free. See infra notes 277–80and accompanying text.

91. Baye, supra note 42.92. See, e.g., MINN. DEP’T OF CORR., THE EFFECTS OF PRISON VISITATION ON

OFFENDER RECIDIVISM 27 (2011), https://mn.gov/doc/assets/11-11MNPrisonVisitation



oners have a constitutional right to meet with their attorneys.93 Wo-men should not be shamed out of these benefits and rights.

III. GLOBAL RECOGNITION AND INTERNATIONAL STANDARDS

FOR WOMEN PRISONERS

A. U.S. Noncompliance with International Standardsfor Human Rights

The United States purports to be at the forefront of promoting andupholding human rights.94 The United States also claims that, becauseof the national interest in human rights, it strives to hold other nationsaccountable to the obligations of international human rights instru-ments and universal norms.95 Despite these claims, the United Stateshas a reputation for abiding by international laws and standards onlywhen convenient.96 Regarding the international standards for womenprisoners, the United States’ reputation is fitting. The Bangkok Rulesare the current international standard for women prisoners.97 Al-though the Bangkok Rules are a nonbinding agreement,98 many othercountries have taken steps to implement the rules into their criminaljustice systems.99 Despite the international push for respecting and

Study_tcm1089-272781.pdf [https://perma.cc/X6FA-FQHM] (finding that visitationreduces recidivism by 13% for felons and 25% for technical violation revocations); seealso John Rudolf, Prison Visits Make Inmates Less Likely to Commit Crimes AfterRelease, Study Finds, HUFFPOST (Dec. 7, 2011, 7:27 PM), https://www.huffingtonpost.com/2011/12/07/prison-visits-inmates_n_1135288.html [https://perma.cc/7YPD-2SMQ].

93. MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS § 12:27 (5th ed. 2017).94. Human Rights, U.S. DEP’T ST., https://www.state.gov/j/drl/hr/ (last visited Feb.

25, 2018) [https://perma.cc/X5BY-EPEU].95. Id.96. Mark A. Pollack, Who Supports International Law, and Why?: The United

States, The European Union, and The International Legal Order, 13 INT’L J. CONST. L.873, 874 (2015).

97. G.A. Res. 65/229, United Nations Rules for the Treatment of Women Prison-ers and Non-Custodial Measures for Women Offenders (the Bangkok Rules) (Mar.16, 2011).

98. Bangkok Rules: Women in Detention Have Rights Too, ASS’N FOR PREVEN-

TION TORTURE (Nov. 6, 2011), https://www.apt.ch/en/news_on_prevention/bangkok-rules/ [https://perma.cc/XQ22-R4HX].

99. PRI’s Bangkok Rules E-bulletin: November 2015, PENAL REFORM INT’L (Nov.2015), https://cdn.penalreform.org/wp-content/uploads/2013/09/PRIs-quarterly-e-bulletin-on-the-Bangkok-Rules-on-women-in-the-criminal-justice-system.pdf [https://perma.cc/Q79Z-UMBP]. In 2015, the Public Security Directorate from Jordan partici-pated in a roundtable with Penal Reform International and the Danish Instituteagainst Torture to discuss the efforts of Jordan prisons to implement the BangkokRules. Id. In October 2015, twenty-three officers from Uganda received training onhow to implement the Bangkok Rules. Id. More recently, in November 2017 PenalReform International provided training on the Bangkok Rules to prison and proba-tion officers from Kenya. PRI’s Bangkok Rules E-bulletin: January 2018, PENAL RE-

FORM INT’L (Jan. 2018), https://mailchi.mp/penalreform/quarterly-e-bulletin-with-news-and-resources-on-women-in-criminal-justice-systems-2742965 [https://perma.cc/GC2Y-RSC7].



protecting the human rights of women prisoners, the United Statescontinues to fall behind.

B. International Standards for Women Prisoners:The Bangkok Rules

With over half-a-million females in prison or awaiting trial world-wide, the specific needs of women prisoners have gained internationalattention.100 In 1957, the United Nations set the first internationalstandard for the treatment of prisoners by adopting the Standard Min-imum Rules for the Treatment of Prisoners (“Standard MinimumRules”), but women were hardly considered.101 In 2010, the rules un-derwent revisions to reflect the major changes in human rights andcriminal justice standards.102 On December 21, 2010, the United Na-tions General Assembly adopted the United Nations Rules for theTreatment of Women Prisoners and Non-Custodial Measures for Wo-men Offenders, commonly referred to as the Bangkok Rules.103

Before the Bangkok Rules were adopted, the international standardfor the treatment of prisoners did not address the special needs ofwomen.104 Further, prison facilities and internal procedures were gen-erally designed for men because women made up significantly less ofthe prison population.105 The Bangkok rules signified the interna-tional acknowledgment of women’s gender-specific needs within thecriminal justice system.106 These rules were unanimously adopted,proving international agreement to respect and meet women’sneeds.107 Specifically, as a member of the United Nations, the UnitedStates has agreed to these standards.108

Thirteen of the seventy rules specifically address hygiene and healthcare.109 Although personal hygiene was addressed in the Standard

100. See PENAL REFORM INT’L, UN BANGKOK RULES ON WOMEN OFFENDERS

AND PRISONERS: SHORT GUIDE 3 (2013), https://www.penalreform.org/wp-content/uploads/2013/07/PRI-Short-Guide-Bangkok-Rules-2013-Web-Final.pdf [https://perma.cc/ACH3-CGBG].

101. UN Nelson Mandela Rules (Revised SMR), PENAL REFORM INT’L, https://www.penalreform.org/priorities/prison-conditions/standard-minimum-rules/ (last vis-ited Sept. 30, 2018) [https://perma.cc/E8FD-HWCP].

102. Id.103. G.A. Res. 65/229, supra note 97.104. See PENAL REFORM INT’L, supra note 100, at 4.105. Id.106. Id.107. See id.108. See id.109. TOMRIS ATABAY, GUIDANCE DOCUMENT ON THE UNITED NATIONS RULES

ON THE TREATMENT OF WOMEN PRISONERS AND NON-CUSTODIAL MEASURES FOR

WOMEN OFFENDERS (THE BANGKOK RULES) 1 (2013), https://www.penalreform.org/wp-content/uploads/2013/10/PRI-TIJ-Guidance-Document-on-Bangkok-Rules-October-2013.pdf [https://perma.cc/ALS8-7M5M].



Minimum Rules, the Bangkok Rules expressly state the necessity ofproviding free feminine hygiene products.110 Rule Five states:

The accommodation of women prisoners shall have facilities andmaterials required to meet women’s specific hygiene needs, includ-ing sanitary towels provided free of charge . . . .111

Thus, to meet the international minimum standard, women prisonersshould have easily accessible sanitary towels free-of-charge.112 One ra-tionale behind this rule is that ensuring prisoners have the ability tomaintain their own personal hygiene is important for their rehabilita-tion.113 This ability not only promotes health and prevents disease, butit also significantly impacts prisoners’ sense of human dignity.114 RuleFive recognizes the specific hygiene needs of female prisoners and ac-knowledges that these needs must be met to promote the health andhuman dignity of women.115

The Bangkok Rules represent a significant step toward protectingthe rights of women in the criminal justice system, but these standardsare ineffective if they are not put into practice.116 In light of the bene-fits that these rules could have on inmate rehabilitation, all facilitiesshould meet or attempt to meet these standards. Further, many of therules can be implemented without additional funding.117 The rulesmerely require a “change in awareness, attitude[,] and practices—andin particular a committed investment in the training of prison staff,policy-makers, prison administrators[,] and others who engage withwomen in the criminal justice system.”118 Thus, by ignoring its com-mitment to the Bangkok Rules and the international trend for womenprisoners’ rights, the United States shows a disregard for the humanrights of incarcerated American women.

IV. THE U.S. CONSTITUTION: INDIVIDUAL FIXES FOR

INDIVIDUAL VIOLATIONS

A. Limits on the Constitutional Rights of Prisoners

There was a time in American history when prisoners were consid-ered to have no constitutional rights.119 During this time, the hands-off doctrine prevented courts from considering whether prisoners re-tained any constitutional rights.120 Courts felt it was not their role to

110. Id. at 33.111. G.A. Res. 65/229, supra note 97, (emphasis added).112. ATABAY, supra note 109, at 33–34.113. Id.114. Id. at 33.115. Id.116. PENAL REFORM INT’L, supra note 100, at 10.117. Id.118. Id.119. MUSHLIN, supra note 93, § 1:3.120. Id.



rule on prisoners’ treatment while imprisoned but rather only to re-lease those who were confined illegally.121 In 1970, this doctrine metits demise in Wolf v. McDonnell, when the Supreme Court stated that“[t]here is no iron curtain drawn between the Constitution and theprisons of this country.”122 Before Wolf, the deference given to prisonadministrators was unfettered because courts refused to become in-volved in the treatment of prisoners.123 By abolishing the hands-offdoctrine, the Court established that there are limitations on the defer-ence owed to prison administrators and that prisoners are owed judi-cial review to ensure their rights are not violated.124

Though the Constitution has the power to breach prison walls,courts have established there are limitations on prisoners’ constitu-tional rights.125 In Jones v. North Carolina Prisoner’s Labor Union,Inc., the Supreme Court considered the extent of a prisoner’s FirstAmendment rights, stating “[t]he fact of confinement and the needs ofthe penal institution impose limitations on constitutional rights . . .which are implicit in incarceration.”126 Thus, limitations on some free-doms and rights, such as the right to travel, are inherent in the natureof being incarcerated.127

Not only do prisoners face different standards because they are in-carcerated, but they also face different standards depending on theright at issue.128 Accordingly, there is no uniform standard to deter-mine whether a prisoner’s constitutional rights were violated.129

Rather, the Supreme Court uses different standards for prisoners de-pending on the constitutional right at issue.130

B. Possible Constitutional Violations: The Eighth Amendment

The Eighth Amendment prohibits cruel and unusual punishment.131

When the Amendment was drafted, its purpose was to prohibit tor-

121. Id.122. Wolf v. McDonnell, 418 U.S. 539, 555–56 (1974).123. See id. at 555–56.124. MUSHLIN, supra note 93, § 2:2.125. Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977).126. Id.127. MUSHLIN, supra note 93, § 2:3.128. Id.129. Id.130. Id. The four approaches of the Supreme Court are:

(1) The objective and subjective tests for determination of Eighth Amend-ment violations; (2) The procedural due process model for determination ofissues relating to individual disciplinary decisions to which an inmate is sub-jected; (3) The analysis reserved for specially protected rights in prison, in-cluding the right of access to the courts and the right to be free fromdiscrimination; and (4) The rational relationship test of Turner v. Safley forthe determination of most substantive constitutional rights.

Id.131. U.S. CONST. amend. VIII.



ture and other barbarous punishments.132 Accordingly, early applica-tions involved determining the constitutionality of inhumanepunishments and methods of execution.133 But the Supreme Court es-tablished long ago that the scope of the Eighth Amendment’s protec-tion is not set in stone.134 Rather, its meaning is based on the“evolving standards of decency that mark the progress of a maturingsociety.”135 Thus, the Supreme Court has held that the EighthAmendment protects from “more than physically barbarouspunishments.”136

Even though the Eighth Amendment is the only amendment thatspecifically addresses prisoners’ rights,137 the Supreme Court did notconsider its applicability to prison conditions until Estelle v. Gamble in1976.138 Although Estelle was the first Supreme Court case of its kind,it established the current standard used when prisoners allege themedical care they received in custody violated their Eight Amend-ment right.139

In Estelle, a prisoner claimed that he received insufficient medicaltreatment after an injury, which equated to cruel and unusual punish-ment.140 This required the Court to determine whether medical mis-treatment could amount to a constitutional violation.141 The Courtclarified when the government is punishing someone by incarceration,it is obligated to provide medical care.142 Further, the Court held thatthe Eighth Amendment is violated by a “deliberate indifference toserious medical needs of prisoners.”143 This holding established thetwo requirements to prove prisoners’ rights have been violated by in-sufficient medical treatment.144 First, the prisoner must have a serious

132. Gregg v. Georgia, 428 U.S. 153, 169–70 (1976).133. Estelle v. Gamble, 429 U.S. 97, 102 (1976).134. Trop v. Dulles, 356 U.S. 86, 100–01 (1958).135. Id. at 101.136. Estelle, 429 U.S. at 102.137. MUSHLIN, supra note 93, § 3:1.138. Id. § 3.2; see also Estelle, 429 U.S. at 97. Before 1976, the Eighth Amendment

was rarely invoked, and the Court primarily considered it when deciding whether aformal sanction was constitutional. MUSHLIN, supra note 93, § 3:2.

139. MUSHLIN, supra note 93, § 4:2.140. Estelle, 429 U.S. at 98–101. After injuring his back during a work assignment,

numerous doctors attended to the prisoner, but he argued more should have beendone to diagnose and treat his injury. Id. at 98, 107.

141. See id. at 97.142. Id. at 103.143. Id. at 104. Although Estelle is considered a landmark decision, the court actu-

ally held the prisoner’s rights were not violated. Id. Other than providing a few exam-ples of conduct that would amount to violations, the Court did not establish how todetermine whether these requirements have been met. Id. at 104–05.

144. Kate Walsh, Comment, Inadequate Access: Reforming Reproductive HealthCare Policies for Women Incarcerated in New York State Correctional Facilities, 50COLUM. J.L. & SOC. PROBS. 45, 60 (2016).



medical need.145 Second, there must have been deliberate indifferenceto that need.146

After Estelle, the Court provided additional clarification on thescope of the Eighth Amendment’s protections. While the EstelleCourt examined whether a specific incident was a violation, the Courtlater broadened the Eighth Amendment’s protection to cover generalprison conditions.147 The Court held that prison conditions “alone orin combination, may [reach such a level that they] deprive inmates ofthe minimal civilized measure of life’s necessities.”148

The Court has also expanded on the necessary requirements toprove a violation. It made clear that all Eighth Amendment claimshave an objective and subjective requirement.149 Objectively, the dep-rivation must be sufficiently serious.150 Subjectively, the prison officialmust have had a “sufficiently culpable state of mind.”151 In terms ofthe Estelle medical care standard, the medical need must be objec-tively serious, and the deprivation must result from the defendant’ssubjective deliberate indifference to the medical need.152 The Courtalso explicitly rejected the argument that a different standard wouldapply to continuing or systemic violations.153 Thus, for class actionsuits or challenges to prison conditions in general, plaintiffs mustprove there was a “deliberate indifference to inmate health orsafety.”154

The Supreme Court has not yet advised how to evaluate the seri-ousness of a prisoner’s medical need to determine whether the objec-tive requirement is met.155 The Second Circuit, however, has provideda non-exhaustive list of factors to consider: “(1) whether a reasonabledoctor or patient would perceive the medical need in question as im-portant and worthy of comment or treatment, (2) whether the medicalcondition significantly affects daily activities, and (3) [whether]chronic and substantial pain [exists].”156 Additionally, showing an in-jury is not always necessary because the Supreme Court has held theEighth Amendment also protects against imminent dangers.157 Butwhen analyzing the seriousness of a potential harm, a court must con-

145. Wilson v. Seiter, 501 U.S. 294, 297 (1991).146. Id.147. Rhodes v. Chapman, 452 U.S. 337, 344–45 (1981).148. Id. at 347.149. Wilson, 501 U.S. at 298.150. Farmer v. Brennan, 511 U.S. 825, 834 (1994).151. Id.152. MUSHLIN, supra note 93, § 4:2.153. Wilson, 501 U.S. at 300.154. Farmer, 511 U.S. at 834.155. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003).156. Id. (internal quotations omitted) (citing and quoting McGuckin v. Smith, 974

F.2d 1050, 1059–60 (9th Cir. 1992)).157. Helling v. McKinney, 509 U.S. 25, 34 (1993). The Supreme Court held that a

valid cause of action under the Eighth Amendment could be claimed when alleging



sider more than the mere scientific and statistical seriousness of theharm or likelihood that it would occur.158 It must consider “[w]hethersociety considers the risk that the prisoner complains of to be so gravethat it violates contemporary standards of decency to expose anyoneunwillingly to such a risk.”159 The Court has also recognized that inad-equate sanitation and hygiene during incarceration may give rise to anEighth Amendment claim.160 Lower courts have interpreted this tomean that “[t]he failure to regularly provide . . . sanitary napkins forfemale prisoners constitutes a denial of personal hygiene and sanitaryliving conditions.”161

The subjective culpable-prison-official requirement of EighthAmendment claims is also a controversial topic.162 Although liabilityunder Estelle only required more than mere negligence, the Courtlater equated a deliberate indifference requirement to that of recklessdisregard of risk of serious harm.163 Thus, unless a prison official“knows of and disregards an excessive risk to inmate health or safety,”the Eighth Amendment is not violated.164 The subjective requirementof all Eighth Amendment violations is based on the reasoning thatcruel and unusual punishments are prohibited, not merely cruel andunusual conditions.165 But including a subjective requirement meansthat no matter how objectively terrible a prison condition is, a courtmay find the condition constitutional because a prison official did notmeet the scienter requirement.166

The high burden of proof makes it difficult for women prisoners tomake a successful Eighth Amendment claim based on insufficientfeminine hygiene products, but there may be hope for similar claimsin the future. In Selmelbauer v. Muskegon County, women prisonersfrom Michigan filed a class action suit based on multiple claims alleg-ing Muskegon County Jail violated their constitutional rights.167 Nota-bly, the plaintiffs alleged their Eighth Amendment rights wereviolated because the jail denied them feminine hygiene products andtoiletries.168 Their complaint explained that women in the jail were

deliberate indifference to exposure that could “pose an unreasonable risk of seriousdamage to . . . future health.” Id. at 35.

158. Id. at 36.159. Id.160. MUSHLIN, supra note 93, § 3:68–3:69.161. Atkins v. Cty. of Orange, 372 F. Supp. 2d 377, 406 (S.D.N.Y. 2005) (quoting

Dawson v. Kendrick, 527 F. Supp. 1252, 1288–89 (D.C.W. Va. 1981), aff’d on othergrounds sub nom. Bellotto v. Cty. of Orange, 248 Fed. App’x 232 (2d Cir. 2007).

162. MUSHLIN, supra note 93, § 3:14.163. Farmer v. Brennan, 511 U.S. 825, 836 (1994).164. Id. at 837.165. Id.166. MUSHLIN, supra note 93, § 3:14.167. Semelbauer v. Muskegon Cty., No. 1:14-cv-1245, 2015 WL 9906265, at *1

(W.D. Mich. Sept. 11, 2015).168. Id. at *8.



not adequately provided feminine hygiene products, which resulted inmultiple women bleeding through their clothes.169 The court rein-forced that hygiene was a basic need protected under the EighthAmendment but dismissed for failure to state a plausible claim be-cause, individually, the women only alleged single, temporary delaysin their access to feminine hygiene products.170 Further, the court ex-plained that the plaintiffs’ claims were only “de minimis deprivations”and therefore did not violate their civil rights.171 Under this reasoning,at least one federal court has left open the possibility that women pris-oners who are denied feminine hygiene products beyond single, tem-porary deprivations could make a colorable Eighth Amendmentclaim.

C. Deference to Prison Administration

Although courts may recognize deprivations of feminine hygieneproducts as colorable Eighth Amendment claims in the future, suc-cessful claims would not lead to a real solution. This is because courtsgive extensive deference to prison administrators when determiningthe validity of a prison regulation.172 Further, courts impose judicialrestraint when an invalid regulation requires correction.173 Thus, asuccessful claim in court does not ensure a prison regulation will bechanged to bring relief to all prisoners. A successful individual claimonly ensures relief for the individual claimant.

As previously mentioned, a court’s analysis depends on the consti-tutional right at issue, and Turner v. Safley established the defaultanalysis for claims that a prisoner’s constitutional right has been in-fringed when a more specific test is not applicable.174 But Turner isalso significant because it explained the policies behind the deferencethe judicial branch gives to prison administrators when determiningthe validity of a prison practice.

In Turner, Plaintiffs brought a class action suit challenging the con-stitutionality of regulations in a Missouri prison.175 The Court de-clined to apply strict scrutiny as the standard of review, despite itsprevious use of the framework for prisoners’ constitutional claims.176

Instead, the Court used a much lower standard of scrutiny in an at-tempt to balance two principles of analyzing prisoners’ constitutional

169. Id.170. Id. at *9.171. Id. at *10.172. See Turner v. Safley, 482 U.S. 78, 85–91 (1987).173. See Lewis v. Casey, 518 U.S. 343, 362–63 (1996).174. MUSHLIN, supra note 93, § 2:4.175. Turner, 482 U.S. at 81. The first regulation restricted inmates’ correspondence

with inmates at other institutions, and the second restricted inmates’ right to marry.Id. at 81–82.

176. Id. at 83–89; see also Procunier v. Martinez, 416 U.S. 396, 413–14 (1974).



claims.177 The first principle is that the Court has the responsibility ofprotecting prisoners’ rights that are infringed by prison regulations.178

The second principle is that courts are not equipped to handle prisonadministration and reform.179 The Court further explained that theproblems that arise in prisons are complex and not likely corrected byjudicial decree.180 The Court also noted that running a prison is theresponsibility of the legislative and executive branches, so to respectthe separation of powers, the judiciary should act with restraint re-garding prison administration.181 Further, federal courts should giveadditional deference when a state facility is involved in the claim.182

In light of these policies, the Court created a reasonable relation-ship test to analyze prisoners’ constitutional claims.183 Under this test,even if a prison regulation negatively impacts a prisoner’s constitu-tional rights, the “regulation is valid if it is reasonably related to legiti-mate penological interests.”184 Whether the regulation is reasonablyrelated to a legitimate penological interest depends on four factors:(1) “whether there is ‘a valid, rational connection’ between the prisonregulation and the legitimate governmental interest put forward tojustify it”;185 (2) “whether there are alternative means of exercisingthe right” at issue;186 (3) the degree the accommodation of the as-serted constitutional right will have an “impact on guards and otherinmates, and on the allocation of prison resources generally”;187 and(4) whether there is an “absence of ready alternatives,” evidencing thereasonableness of the regulation.188 Using the reasonable relationshiptest, courts grant extensive deference to prison administration with re-spect to the validity of their regulations. Thus, it would be unlikely fora court to invalidate a prison regulation, even if it did not providesufficient access to menstrual hygiene products, so long as a prisonadministrator could point to a legitimate penological interest for theregulation.

The difficulties of reforming prison regulations through the courtsystem do not end at Turner. Even if a regulation has been foundinvalid, the ways a court can grant a remedy is complex and does not

177. See Turner, 482 U.S. at 81–92.178. Id. at 84.179. Id. at 84–85.180. Id. at 84.181. Id. at 84–85.182. Id. at 85.183. MUSHLIN, supra note 93, § 2:10.184. Id. § 7:3. “Penological interests are interests that relate to the treatment (in-

cluding punishment, deterrence, rehabilitation, etc.) of persons convicted of crimes.”Bull v. City & Cty. of S.F., 595 F.3d 964, 996 (9th Cir. 2010).

185. Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)).186. Id. at 90.187. Id.188. Id.



effectuate change easily.189 This is due to the Court’s reluctance tointrude on the deference afforded to prison administrations to handletheir internal affairs.

For example, in Lewis v. Casey, a district court found the ArizonaDepartment of Corrections liable for failing to provide inmates ade-quate access to the courts.190 To determine the appropriate relief, thedistrict court appointed a law professor who proposed a system-widepermanent injunction, which included twenty-five pages of detailed in-structions.191 Without significant changes, the court adopted the in-junction.192 On appeal, the Supreme Court declared the lower court’sactions were a model of what not to do when granting relief.193 Fur-ther, the Court found the district court’s order did not give sufficientconsideration to state prison authorities.194 The Court explained thatin consideration of comity, states should be given the first opportunityto correct the internal errors of prison administration.195 The Courtsuggested the district court should have given the responsibility to anofficial from the department of corrections rather than a law profes-sor.196 It also suggested that it was inappropriate to place limitationson the remedies available.197

In Casey, the Supreme Court pointed to Bounds v. Smith as an ex-ample of proper judicial restraint.198 In Bounds, after invalidating aregulation, a district court gave the Department of Corrections thetask of creating a constitutional program.199 The district court thenexamined the Department’s proposal and approved it after minorchanges.200 The Casey Court explained this was an admirable processbecause the lower court did not infringe on the role of prison adminis-trators and allowed them wide discretion within constitutionallimitations.201

Additionally, although Casey was a class action suit, the Courtfound only two plaintiffs had actually suffered an injury.202 The Courtexplained that a remedy must be limited to the inadequacy that

189. MUSHLIN, supra note 93, § 3:93.190. Lewis v. Casey, 518 U.S. 343, 346 (1996).191. Id. at 347, 363.192. Id. at 347.193. Id. at 363.194. Id. at 362.195. Id.196. Id. at 363.197. Id.198. Id. at 362–63 (citing Bounds v. Smith, 430 U.S. 817 (1977)).199. Id. at 362.200. Id. at 362–63.201. Id. at 363.202. Id. at 356.



caused a plaintiff’s injury.203 Accordingly, the two injuries did not sup-port a system-wide remedy.204

Under the Supreme Court’s suggested method, the same Depart-ment of Corrections that implemented an unconstitutional regulationis given the responsibility of creating the new regulation. For example,if a regulation that provides an insufficient amount of feminine hy-giene products was found invalid, the same department that createdthat regulation would be responsible for devising the new plan. Fur-ther, the remedy will only go as far as the inadequacy that causedactual injury, so without a system-wide injury there will not be system-wide relief. Deprivations in one facility within a prison system do notguarantee relief in other facilities if no claims specific to those otherfacilities have been brought successfully in court.

Thus, out of respect for the separation of powers, courts are verycautious about stepping on the toes of prisons’ administrations. Exten-sive deference is given in determining the constitutional validity of aprison regulation, and even if a regulation is found invalid, the respon-sibility of correcting the problem is placed back into the hands thatcaused it. Further, courts only have system-wide involvement if thereis sufficient justification for system-wide relief. Without successfulclaims involving multiple facilities throughout a prison system, reliefwill be limited to individuals who have made successful claims incourt. Therefore, because of judicial restraint and the substantial def-erence given to prison administrations, successful claims in court willlikely not lead to a real solution for the many women prisoners withinsufficient access to feminine hygiene products.

V. THE SEARCH FOR A SOLUTION: LEGISLATION TO

CORRECT THE INJUSTICE

A. Current Efforts Toward a Solution

As women prisoner’s inadequate access to feminine hygiene prod-ucts gains more recognition as a serious issue, more efforts are madein search of a solution. Although no current proposition would fix theproblem for all incarcerated women, any current effort toward a solu-tion is a step in the right direction.

1. Federal

On August 1, 2017, the Federal Bureau of Prisons released an oper-ations memorandum titled “Provision of Feminine Hygiene Prod-ucts.”205 The memorandum’s purpose was to give guidance on the

203. Id. at 357.204. Id. at 360.205. Operations Memorandum on Provision of Feminine Hygiene Products, FED.

BUREAU PRISONS (Aug. 1, 2017), https://www.bop.gov/policy/om/001_2017.pdf [https://perma.cc/7HFU-KG6Q].



specific feminine hygiene products that prisons should provide to in-mates.206 The memorandum applies to all federal facilities that housefemale inmates.207 According to the memorandum, wardens are re-sponsible for ensuring that inmates have access to regular and super-size tampons, regular and super-size pads with wings, and regularpanty liners.208 Most importantly, all of these products are to be pro-vided free of charge.209 The memorandum also requires that the com-missary continue to offer at least one kind of tampon, pad, and pantyliner.210 Although the products are supposed to be free, the memoran-dum prohibits any significant increase to the facilities current ex-penses on feminine hygiene products.211

While the provision of free feminine hygiene products is a step inthe right direction, this memorandum is not a complete solution. First,the memorandum only applies to federal facilities, meaning it offersno aid to the thousands of women incarcerated in state facilities.212 Byexclusively applying to federal facilities, only about 13,000 of the ap-proximately 111,500 women in prison benefit from this change.213 Sec-ond, the memorandum is completely ineffective if not enforced. Whenasked about the memorandum, the Bureau of Prisons Information,Policy, and Public Affairs Division commented that although institu-tions may vary on the type of product they provide, the operationsmemorandum was being followed and women were being providedfeminine hygiene products for free.214 But a survey conducted byprison advocacy groups showed a different result. Of the twenty-eightsurveyed facilities, women from fourteen facilities reported the opera-tions memorandum was not being followed.215 Some facilities havemade changes, but they were insufficient. For example, before thememorandum, a federal prison in Victorville, California, only pro-vided one box of tampons per unit of about 130 women.216 After thememorandum was issued, each unit received two boxes.217 Without

206. Id.207. Id.208. Id.209. Id.210. Id.211. Id.212. The operations memorandum only applies to federal prisons because the Fed-

eral Bureau of Prisons only oversees federal facilities. Lindsay Kramer, What Are theMain Differences Between State and Federal Corrections?, LEGAL BEAGLE, https://legalbeagle.com/8214304-main-between-state-federal-corrections.html (last updatedMar. 15, 2018) [https://perma.cc/5PA5-3VTN]. State facilities for offenders of statecrimes are overseen by the individual state governments and thus are not subject tothe federal operations memorandum. Id.

213. E. ANN CARSON & ELIZABETH ANDERSON, PRISONERS IN 2015 (2016), https://www.bjs.gov/content/pub/pdf/p15.pdf [https://perma.cc/98WF-NAYM].

214. Law, supra note 51.215. Id.216. Id.217. Id.



strictly enforcing the memorandum, women will not get the aid theyneed. Finally, the memorandum expired on August 1, 2018—merelyone year after it was issued.218 The same day, another identical memo-randum was authorized but is set to expire on August 1, 2019.219 One-year increments of higher standards are not the type of reform thatcan make real change, especially when many facilities waited monthsto make any changes to their policy.220 It is not clear what will happenafter the new memorandum expires. Considering how the memorandahave been enforced, it is likely that if a new memorandum is not is-sued each year to continue this policy, many of the facilities will returnto their old ways and women will lose the little access to femininehygiene products they gained.

Female prisoners’ lack of access to feminine hygiene products hasalso gained Congress’s attention. On July 11, 2017, Senate Bill 1524was introduced in the Senate.221 The bill, titled “Dignity for Incarcer-ated Women Act of 2017,” is aimed at improving the lives of femalefederal prisoners.222 Most notably, the bill would largely improve theprovision of feminine hygiene products. Section 2 of the bill wouldrequire, among other items, both tampons and sanitary napkins223 beprovided at no cost and in a sufficient quantity for individual prison-ers’ needs.224 The bill was referred to the Senate Committee on theJudiciary, but no further action has been taken as of this writing.225

Additionally, commenters have noted that just three weeks afterthe Dignity for Incarcerated Women Act of 2017 was introduced, theFederal Bureau of Prisons released the Provision of Feminine Hy-giene Products operations memorandum.226 The bill appears to have

218. Operations Memorandum on Provision of Feminine Hygiene Products, supranote 205.

219. Operations Memorandum on Provision of Feminine Hygiene Products, FED.BUREAU PRISONS (Aug. 1, 2018), https://www.bop.gov/policy/om/003-2018.pdf [https://perma.cc/W796-S9DD].

220. Law, supra note 51.221. Dignity for Incarcerated Women Act of 2017, S. 1524, 115th Cong. (2017).222. Id. The bill also puts special emphasis on improving the lives of women prison-

ers who are primary caretaker parents. Id.223. Id. at § 4050(j)(1)(C). The items required to be provided are “(i) tampons; (ii)

sanitary napkins; (iii) moisturizing soap, which may not be lye-based; (iv) shampoo;(v) body lotion; (vi) Vaseline; (vii) toothpaste; (viii) toothbrushes; (ix) aspirin; (x)ibuprofen; and (xi) any other healthcare product that the Director determines appro-priate.” Id.

224. Id. at § 4050(j)(1)(A). The bill would also establish an office for prisonerplacement determinations that would place parent prisoners “as close to their chil-dren as possible.” Id. at § 4050(b). Further, the bill would place restrictions on the useof segregated housing, prohibit shackling of pregnant prisoners, and establish parent-ing classes for prisoners with children. Id. at § 4050(d)–(e).

225. All Actions S. 1524—115th Congress (2017–2018), CONGRESS, https://www.congress.gov/bill/115th-congress/senate-bill/1524/all-actions?overview=closed#tabs (lastvisited Nov. 1, 2018) [https://perma.cc/7XPR-5AQU].

226. Erin Delmore, Do You Get Tampons in Prison? The Law Is Moving TowardMenstrual Equality, BUSTLE (Aug. 16, 2017), https://www.bustle.com/p/do-you-get-



already improved federally incarcerated women’s lives by puttingpressure on the Federal Bureau of Prisons, but enacting the bill wouldensure the women who have received more access to feminine hy-giene products would keep it past a memorandum’s expiration date.Similar to the operations memorandum, this bill is a positive step forwomen, but it is not a complete solution. First, the bill neglects themajority of incarcerated women because it only grants access to fed-eral prisoners. Second, the bill does not require different sizes oftampons and pads, which disregards that specific types of products arenecessary for individual needs.227 Finally, the bill is completely inef-fective if it is not passed. Thus, while proposed legislation is a positivesign for women prisoners, Senate Bill 1524 is far from a real solution.

2. State and Local Government

Many state and local governments are also working to find solutionsto women prisoners’ lack of access to feminine hygiene products. InOctober 2017, Nebraska prisons were brought into the spotlight fortheir poor treatment of women prisoners after the ACLU of Nebraskareleased an investigative report.228 Its investigation discovered Ne-braska prisons and jails charged 20% to 50% more for feminine hy-giene products than the price in local stores.229 The report also notedthe recent release of the Federal Bureau of Prisons’ Provision of Fem-inine Hygiene Products operations memorandum and the Dignity forIncarcerated Women Act of 2017.230 After the report, a Nebraskanstate senator asked the Department of Corrections to review theirpolicy.231

Pressure from the ACLU and state legislators was effective becausethe Nebraska Department of Correctional Services changed its pol-icy.232 As of this writing, women prisoners are provided generic brandtampons and pads for free, and name brand products are available in

tampons-in-prison-the-law-is-moving-toward-menstrual-equality-77060 [https://perma.cc/582Q-YEMX].

227. See Marusic, supra note 22.228. Let Down and Locked Up: Nebraska Women in Prison, supra note 37, at 3.229. Press Release, ACLU of Nebraska, ACLU: Tampons and Pads Are Treated as

a Luxury Item by Nebraska Prisons and Jails (Oct. 19, 2017), https://www.aclunebraska.org/en/press-releases/aclu-tampons-and-pads-are-treated-luxury-item-nebraska-prisons-and-jails [https://perma.cc/5DNB-L65J]; see also Let Down and Locked Up:Nebraska Women in Prison, supra note 37, at 10.

230. Let Down and Locked Up: Nebraska Women in Prison, supra note 37, at 10.231. Maggie Cunningham, Free Feminine Hygiene Products Now Available to

NCDC Female Inmates, KETV (Jan. 17, 2018, 1:04 PM), http://www.ketv.com/article/free-feminine-hygiene-products-now-available-to-ncdc-female-inmates/15333490[https://perma.cc/9Y75-PPWX].

232. Martha Stoddard, New Prison Policy Will Offer Free Tampons, Lower Priceson Other Hygiene Products, OMAHA WORLD-HERALD (Jan. 18, 2018), http://www.omaha.com/news/nebraska/new-prison-policy-will-offer-free-tampons-lower-prices-on/article_ebd8f138-fbe0-11e7-b2f9-fbd605296f19.html [https://perma.cc/MGN4-X2BK].



the commissary for the same prices local stores charge.233 This is anexample of how exposing women prisoners’ lack of access to femininehygiene products can bring about positive change.

This issue also gained national attention when women across Ari-zona sent pads, tampons, and money to State Representative ThomasShope’s office after he stalled a bill that would increase women pris-oners’ access to feminine hygiene products.234 The bill—House Bill2222—would provide inmates in Arizona unlimited feminine hygieneproducts for free and appropriate $80,000 to the Department of Cor-rections to complete the task.235 The bill would provide women withtampons, pads, and alternative products such as menstrual spongesand menstrual cups.236

On February 5, 2018, House Bill 2222 came before the all-male Mil-itary Veterans and Regulatory Affairs Committee.237 In support of thebill, Representative Salman described how the current policy—twelvefree pads per month—was unfair because the women only made 15¢per hour, and additional products cost $3.20 for sixteen pads or $2.05for ten tampons.238 Women could make medical requests for addi-tional products, but their medical visit costs $4, and their requestcould still be denied.239 Even with medical approval, the women werelimited to only twenty-four pads.240 Former inmates also testified theyhad to wear multiple pads at a time because the quality was so poorand that many inmates would still bleed on their uniform.241 If that

233. Id.234. Amir Vera, Why Women in Arizona are Sending a State Representative Pads

and Tampons, CNN, http://www.cnn.com/2018/02/13/health/women-pads-arizona-state-representative-trnd/?iid=OB_health_core_homepage (last updated Feb. 13,2018, 3:04 PM) [https://perma.cc/84GJ-XCUH]; see also Amy Held, Arizona Depart-ment of Corrections Changes Sanitary Pad Policy Following Backlash, NPR (Feb. 15,2018, 9:26 PM), https://www.npr.org/sections/thetwo-way/2018/02/15/586134335/arizona-department-of-corrections-changes-sanitary-pad-policy-following-backlash [https://perma.cc/4MX2-HQEX].

235. H.B. 2222, 53d Leg., 2d Reg. Sess. (Ariz. 2018).236. Id. Menstrual sponges, a product made of sea sponges, are a natural alterna-

tive to tampons. Sea Sponge Tampons, CLOTH PADS, https://clothpads.wordpress.com/sponges/ (last visited Feb. 16, 2018) [https://perma.cc/N8GB-V6YY]. The products arereusable up to six to twelve months and can be less expensive than tampons but arenot as effective for heavy periods. Id. Menstrual cups are also an alternative totampons but are not as natural. See Menstrual Cups, CLOTH PADS, https://clothpads.wordpress.com/menstrual-cups/ (last visited Feb. 16, 2018) [https://perma.cc/H4FS-WGQA]. Menstrual cups form a reservoir that collects blood untilremoved, and if properly maintained, can be reused for years. Id.

237. Vera, supra note 234.238. Id.239. Kaila White, Arizona Legislator Kills Bill That Would Have Given Female In-

mates Free Feminine Products, AZCENTRAL, https://www.azcentral.com/story/news/politics/legislature/2018/02/12/mail-pads-tampons-arizona-rep-tj-shope-stall-bill-inmates-free-menstrual-products-rep-athena-salman/330496002/ (last updated Feb. 12,2018, 6:27 PM) [https://perma.cc/5FBN-FGYJ].

240. Id.241. Id.



occurred, the women were punished by losing phone privileges orcommissary privileges, leaving them unable to purchase additionalproducts.242 The committee also received a list of complaints, whichincluded one from a woman who was only provided half a box of extrapads when she was continuously bleeding for six weeks after givingbirth.243 A former nurse for incarcerated women who attended thehearing in support of the bill commented how the alternative methodsprisoners currently use can increase bacteria and cause TSS.244 A for-mer inmate also spoke to the committee about the positive effects thebill could have on incarcerated women’s attitude and morale.245

Despite the persuasive testimony, committee members were con-cerned that providing “unlimited” products would lead to vandal-ism.246 The warden of the Perryville prison, agreed vandalism could bea problem but noted that this did not happen often.247 There were alsobudgetary concerns about requiring administration to provide unlim-ited products.248 In response to committee concerns, RepresentativeSalman was open to negotiations on the “unlimited” language.249

House Bill 2222 passed through the Military Veterans and Regula-tory Affairs Committee by a 5-4 vote,250 but it then hit a roadblock.The bill needed a House Rules Committee hearing to continue, butRepresentative Shope stalled the bill in light of the Department ofCorrections attempting to revise their policy.251 This caused backlashfrom the community and ignited the #LetItFlow campaign, which gar-nered national attention.252 People began sending money and femi-nine hygiene products to Representative Shope’s office as donations

242. Id.243. Id.244. Jimmy Jenkins, ‘Pads and Tampons and the Problems with Periods:’ All-Male

Committee Hears Arizona Bill on Feminine Hygiene Products in Prison, KJZZ, https://kjzz.org/content/602963/‘pads-and-tampons-and-problems-periods-all-male-committee-hears-arizona-bill-feminine (last updated Feb. 12, 2018, 12:54 PM) [https://perma.cc/3WDS-UHWE].

245. Id.246. Feminine Hygiene Products; Requirements; Appropriation: Hearing on H.B.

2222 Before the H. Comm. on Military, Veterans, & Regulatory Affairs, 53d Leg., 2dReg. Sess. (Ariz. 2018), http://azleg.granicus.com/MediaPlayer.php?view_id=13&clip_id=20340&meta_id=496684 [https://perma.cc/Z3J3-NQPL].

247. Id. Kim Currier is the current warden of the Perryville prison. Id.248. Id. The budgetary concerns were raised by Ray Martinez, a retired deputy

warden and a member of the committee. Id. Martinez also suggested raising the qual-ity of the products to lower the number of products women would have to use. Id.

249. Jenkins, supra note 244.250. Id. H.B. 2222 passed through the committee with a 5–4 vote despite comments

from the committee chairman such as, “I’m almost sorry I heard the bill . . . I didn’texpect to hear pads and tampons and the problems of periods.” Id. The chairman alsocalled the prisoners liars. Id.

251. Vera, supra note 234. Representative Thomas Shope is the Chairman of theHouse Rules Committee. Id.

252. Id.



for incarcerated women.253 Using the hashtag #LetItFlow, many docu-mented their donations on social media and demanded House Bill2222 receive a hearing.254 The ACLU of Arizona also questioned ifthe Department of Corrections could properly handle this issue, whilesimultaneously facing possible fines for providing insufficient healthcare to their inmates.255 On February 13, 2018, the Arizona Depart-ment of Corrections released its new policy, which raised the mini-mum number of products the women receive to thirty-six pads permonth instead of twelve.256 Due to the new policy, House Bill 2222died in committee,257 but this is another example of how exposing theissue can result in relief for incarcerated women.

The policy changes from the Nebraska and Arizona Departments ofCorrections are positive changes, but they are not real solutions be-cause policy changes are not as effective as legislation. First, depart-ments can easily change their policy, so there is no guarantee thesepolicies will be maintained in the future. Policy changes, unlike legisla-tion, do not secure a long-term solution to the problem. Second, theramifications for violating a department policy are handled inter-nally.258 This does not provide the same incentive for compliance oraccountability as violations of law, which are handled in court andpreserved by public record.259 Therefore, while these policy changesare steps in the right direction, legislation would be a more appropri-ate and effective means for a solution.

Some states have passed legislation regarding women’s access tofeminine hygiene products. In Colorado, the state budget bill wasamended to designate $40,000 to the Department of Corrections, spe-cifically to provide tampons to women prisoners.260 But a budgetary

253. Id.254. Id.; see also Held, supra note 234.255. White, supra note 239.256. Press Release, Ariz. Dep’t of Corr., ADC Statement on Policy Revision In-

volving Feminine Hygiene Products, (Feb. 13, 2018), https://corrections.az.gov/article/adc-statement-policy-revision-involving-feminine-hygiene-products [https://perma.cc/A6NQ-4K9N].

257. Amir Vera, Female Inmates in Arizona Only Got 12 Free Pads a Month. AMovement Helped Triple That., CNN, http://www.cnn.com/2018/02/14/us/arizona-department-of-corrections-feminine-hygiene-products/index.html (last updated Feb. 14,2018, 11:50 AM) [https://perma.cc/GTC8-TQJW]. After the release of the new policy,a spokesperson said that the hearing would now be “redundant.” Id. Additionally,Representative Salman considered the policy revision a victory and indicated hewould not continue to push for the bill the following session. Id. Salman has alsocontacted the Governor’s office about possibly adding tampons to the revised policyand is still hoping for a more permanent solution in the future. Id.

258. See ARIZ. DEP’T OF CORR., DEPARTMENT ORDER MANUAL: ADMINISTRATIVE

INVESTIGATIONS AND EMPLOYEE DISCIPLINE § 601.15 (2018), https://corrections.az.gov/sites/default/files/policies/600/0601-effective_042318.pdf [https://perma.cc/ZY9T-7KTM].

259. See id.260. John Tomasic, Colorado House Dems Green Light ‘Orange is the New Black’

Prison Tampon Budget Amendment, COLO. POL. (Apr. 6, 2017), https://coloradopoli



amendment lacks the structure to ensure women are actually providedthe tampons because it does not address the quantity, quality, or dis-tribution of the products.261 For example, the appropriations reportclaims the previous policy—pads for free or tampons for purchase—would be changed to allow the prisoners the option of free tampons orpads.262 However, as of this writing the Colorado Department of Cor-rections policy on feminine hygiene products merely states that facili-ties will provide adequate feminine hygiene supplies.263 By notaddressing how these supplies are distributed, the there is no assur-ance the women will receive the products sufficiently or at all.

Recently, the Virginia Legislature took steps toward a solutionwhen both legislative chambers unanimously passed House Bill 83,which requires feminine hygiene products to be provided to womenprisoners for free.264 The bill was approved by the Governor and tookeffect July 1, 2018.265 Although this is a victory for the citizens of Vir-ginia, the bill is not everything it could have been. The introduced billsought to amend the statutory provisions of the Code of Virginia thatgoverns the treatment of prisoners.266 The bill as introduced also codi-fied the specific products—sanitary napkins, pads, and tampons—thatwould be provided for free.267 However, a house committee substitutedrastically changed the bill before passage.268 The substituted versionno longer amends any statutory provision; rather, it requires the De-partment of Corrections to create a plan that ensures the women areprovided free feminine hygiene products.269 Additionally, the substi-tute does not clarify the specific products that must be provided.270

These changes drastically diminish what House Bill 83 could haveaccomplished as introduced. First, by allowing the Department of Cor-

tics.com/clorado-house-dems-green-light-orange-is-the-new-black-prison-tampon-budget-amendment/ [https://perma.cc/BQ7L-MPNA]. The amendment was proposed byRepresentatives Leslie Herod and Faith Winter. Id.

261. See S.B. 17-254, 71st Gen. Assemb., 2d Reg. Sess. (Colo. 2017).262. COLO. JOINT BUDGET COMM., APPROPRIATIONS REPORT FISCAL YEAR 30

(2017), https://leg.colorado.gov/sites/default/files/fy17-18apprept.pdf [https://perma.cc/5VNX-ZQEE].

263. COLO. DEP’T OF CORRECTIONS, AR-850-11, OFFENDER CLOTHING AND BED-

DING ISSUE, DRESS CODE, HYGIENE, AND GROOMING (2018).264. H.B. 83, 2018 Leg., Reg. Sess. (Va. 2018). The bill passed through the house

with 100 yeas and zero nays. Feminine Hygiene Products; No Cost to Female Prisonersor Inmates, VA.’S LEGIS. INFO. SYS., https://lis.virginia.gov/cgi-bin/legp604.exe?ses=181&typ=bil&val=hb83&submit=go (last visited Mar. 9, 2018) [https://perma.cc/6R35-QG7M]. The bill passed through the senate with forty yeas and zeronays. Id.

265. See Act of Apr. 18, 2018, ch. 815, 2018-4 Va. Adv. Legs. Serv. 1, 1(LexisNexis).

266. H.B. 83, 2018 Leg., Reg. Sess. (Va. 2018) (as introduced Jan.10, 2018).267. Id.268. H.B. 83, 2018 Leg., Reg. Sess. (Va. 2018) (as reported by H. Comm. on Militia,

Police & Pub. Safety).269. Id.270. Id.



rections to create the plan, the legislature has essentially given thediscretion to continue current practices, which would not cause a posi-tive change for women prisoners. Second, by not explicitly stating thetypes of products that must be provided, the bill removes the assur-ance that women will have options that best fit their individual needs.Third, by not explicitly stating a procedure or standard for distribu-tion, the bill does not guarantee the women will be provided a suffi-cient supply of products. Thus, the unanimous vote of the Virginialegislature signifies the acknowledgement that these products are ne-cessities and should be provided for free, but the bill is still not a com-plete solution.

The Maryland Legislature also took positive steps toward a solutionfor women prisoners. On January 31, 2018, Senate Bill 598 was intro-duced in the Senate.271 This bill requires state and local correctionalfacilities to have a written policy and procedure ensuring that prison-ers are provided both tampons and pads for free. Most notably, thisbill requires the policy to include that the women are provided theproducts upon admission, on a routine basis, and on request.272 Thebill also requires facilities to maintain a sufficient supply for the in-mate population.273 Further, the bill requires the facilities keeprecords of the availability of the products, and the records are subjectto review.274 Senate Bill 598 was unanimously passed through the Sen-ate.275 This bill was also cross-filed,276 and its counterpart—House Bill797—was unanimously passed through the House of Representa-tives.277 On April 24, 2018, the Governor of Maryland signed the billsinto law.278 The new law took effect October 1, 2018.279

There are many positive aspects of Maryland’s new law. By requir-ing the facilities to provide both tampons and pads for free, the lawensures the women have a free option that best fits their needs. Thelaw also ensures individual women have a sufficient supply by settinga minimum standard of when the products must be provided. Addi-tionally, the law acknowledges the deference given to prison adminis-

271. S.B. 598, 2018 Gen. Assemb., Reg. Sess. (Md. 2018).272. Id.273. Id.274. Id.275. S. 2018-379, Reg. Sess. (Md. 2018), http://mgaleg.maryland.gov/2018RS/votes/

Senate/0379.pdf [https://perma.cc/Z75B-T9XK].276. A cross-filed bill is an identical bill that is introduced in both chambers. Dep’t

of Legislative Servs., Legislative Lingo, MD. GEN. ASSEMBLY 5, http://mgaleg.maryland.gov/pubs-current/current-legislative-lingo.pdf (last visited Mar. 10, 2018) [https://perma.cc/Z5MX-DBD2].

277. H. 2018-193, Reg. Sess. (Md. 2018), http://mgaleg.maryland.gov/2018RS/votes/House/0193.pdf [https://perma.cc/DU75-XHFH].

278. See Press Release, Larry Hogan, Governor of Maryland, Bills to be Signed bythe Governor (Apr. 24, 2018), https://governor.maryland.gov/wp-content/uploads/2018/04/DLS-Press-Release-Abbreviated-Signed-April-24-2018.pdf [https://perma.cc/KY45-7VCZ].

279. MD. CODE ANN., §§ 4–214, 9–616 (LexisNexis 2017 Supp.).



tration by allowing them to create their own policy, while alsoexplicitly requiring certain standards be included. These requirementsact as safeguards against the facilities abusing their discretion.

Local governments are also making an impact on ensuring womenprisoners have access to feminine hygiene products. On July 13, 2016,New York City passed a local ordinance that guarantees inmates areprovided feminine hygiene products upon request.280 The ordinance,which the city council unanimously passed,281 defines feminine hy-giene products to include tampons and pads.282 When signing the billinto law, Mayor Bill de Blasio said, “There should be no stigmaaround something as fundamental as menstruation . . . . These lawsrecognize that feminine hygiene products are a necessity—not aluxury.”283

B. Proposed Legislation

Although the previously mentioned efforts to solve this problem arepositive steps in the right direction, none of them provide a completesolution for all women prisoners. The best solution for all incarceratedwomen is for federal and state legislative branches to take action byenacting laws at the federal and state level that ensure women prison-ers are supplied with sufficient feminine hygiene products. The follow-ing Sections explain why legislation is necessary at both the federaland state level and propose concepts that would be beneficial if in-cluded in future legislation addressing this issue.

1. Federal

Federal legislation is necessary because it will provide a more per-manent and enforceable standard than mere policy reforms like theoperations memorandums.284 Further, federal prisoners do not have aright to be housed in the same state they committed their offense;rather, they may be transferred between federal facilities across the

280. N.Y.C., N.Y., ADMINISTRATIVE CODE § 9-141 (Supp. 2018). This ordinanceapplies to all female inmates in the New York City Department of Correction’s cus-tody. Id.

281. Sarah Ruiz-Grossman, NYC Mayor Signs Free Tampons for Schools, Jails,Shelters Into Law, HUFFINGTON POST, https://www.huffingtonpost.com/entry/new-york-city-mayor-bill-de-blasio-signs-tampons-free-law_us_5787bc57e4b08608d3336b27 (last updated July 14, 2016) [https://perma.cc/WXM8-NPZ4]; see also Press Re-lease, Bill de Blasio, Mayor, New York City Mayor de Blasio Signs Legislation In-creasing Access to Feminine Hygiene Products for Students, Shelter Residents andInmates (July 13, 2016), http://www1.nyc.gov/office-of-the-mayor/news/611-16/mayor-de-blasio-signs-legislation-increasing-access-feminine-hygiene-products-students[https://perma.cc/EP3U-ZNLP]. The bill was part of a package of legislation that in-creased inmates’, students’, and shelter residents’ access to feminine hygiene prod-ucts. Id.

282. N.Y.C., N.Y., ADMINISTRATIVE CODE § 9-141 (2016).283. Press Release, Bill de Blasio, supra note 281.284. See supra notes 206–20 and accompanying text.



country.285 Without a federal mandate that specifies a policy for pro-viding feminine hygiene products, their provision is at the discretionof individual facilities. Thus, a nationwide standard is necessary to en-sure that all women in federal facilities have sufficient access to femi-nine hygiene products, regardless of the facility’s location.

To effectively combat women prisoners’ insufficient access to femi-nine hygiene products, the federal legislation should meet certain cri-teria. First, the legislation should specify that the women must receivethe feminine hygiene products at no cost to the inmates. Due to thesewomen’s dire financial circumstances, they should be provided thesenecessities for free. Additionally, this would be a step toward imple-menting the Bangkok Rules, showing a respect for international stan-dards and these women’s human rights.

Second, the legislation should require facilities to provide a suffi-cient quantity for an individual’s needs. Not all women’s periods arethe same length or frequency, and feminine hygiene products must bechanged frequently to avoid health risks. The legislation should takethese concerns into account and not place limits on the number ofproducts an inmate can access. The sufficiency language would alsoavoid using over-expansive terms such as “unlimited,” which wouldminimize some of the concerns state legislators have expressed re-garding proposed bills. Additionally, such language would not requirefacilities to provide the products to postmenopausal inmates who nolonger need them, lowering costs.

Third, the legislation should specify the specific types and sizes ofproducts that are provided. The legislation should, at a minimum, pro-vide sanitary napkins with wings and tampons in both regular andsuper-size. The type and size of product necessary to manage a wo-man’s period varies based on the individual. A provision mandatingmultiple sizes and types of products would help meet the specificneeds of each prisoner. It may also be beneficial to include other typesof products such as menstrual sponges or cups because many of theseproducts are reusable and thus would lower the cost of replacing non-reusable products.

Finally, Congress should include financial appropriations to assistthe facilities in implementing the requirements and avoid the facilitiessyphoning funds needed elsewhere. Further, it may also be cost-bene-ficial for the legislation to provide generic products for free and spec-ify that name brand products remain available for purchase in thecommissary. This would allow facilities to lower expenses by purchas-ing generic products while also providing the inmates with additionaloptions.

285. MUSHLIN, supra note 93, § 11:12. “There simply no federal statutory or regula-tory right not to be transferred from prison to prison within the federal system, absentspecial circumstances.” Id.



2. State

Legislation is also necessary at the state level because federal prisonlaws do not apply to state-run institutions. Thus, to find a solution forevery incarcerated woman, each state would need to implement itsown legislation addressing women prisoners’ insufficient access tofeminine hygiene products. This legislation should also meet the previ-ously mentioned criteria to effectuate real change in the lives of wo-men prisoners and to recognize that these products are not a luxury,but a necessity.

C. Cost of Implementation

Based on the cost estimations of previously proposed legislation,implementing legislation of this nature would be very inexpensive forthe federal and state governments. For example, before Virginia’sHouse Bill 83 was substituted, the Department of Planning andBudget estimated that it would only cost $33,769 each year to providesanitary napkins, pads, and tampons to all female inmates.286 Further,it was estimated that this small cost could be absorbed by the existingbudget, meaning no additional funds were required.287 Similarly, whenColorado amended its budget bill to delegate $40,000 for the provisionof free tampons, no additional taxpayer funds were needed. To ac-quire the funds, the Joint Budget Committee recommended appropri-ating from the Youthful Offender System because such a smalldecrease would not harm the program.288 Further, when compared toColorado’s $26.8 billion budget,289 $40,000 is negligible. Additionally,before Arizona House Bill 2222 was stalled, the state estimated that$80,000 would cover the cost of providing prisoners unlimited femi-nine hygiene products.290 This was also intended to cover providingmenstrual cups and similar items that can be more expensive thantampons or sanitary pads.291 Although $80,000 may seem large com-pared to the other states’ estimations, it is still modest considering Ar-izona’s annual budget is over $9.5 billion.292 Compared to the amountof money in state budgets and the funds given to various departmentsof corrections, the cost to provide sufficient feminine hygiene prod-

286. 2018 Fiscal Impact Statement, DEP’T PLAN. & BUDGET, https://lis.virginia.gov/cgi-bin/legp604.exe?181+oth+HB83F122+PDF (last visited Mar. 9, 2018) [https://perma.cc/TX5Z-SEWK].

287. See id.288. Memorandum from the Colo. Joint Budget Committee (Apr. 27, 2017), https://

leg.colorado.gov/sites/default/files/doc_memo_04-27-17.pdf [https://perma.cc/763G-2N53].

289. Tomasic, supra note 260.290. H.B. 2222, 53d Leg., 2d Reg. Sess. (Ariz. 2018).291. Id.292. State of Arizona Executive Budget Summary Fiscal Year 2018, ARIZ. GOVER-

NOR, (Jan. 2017), https://azgovernor.gov/sites/default/files/governor/documents/executivebudget-summary.pdf [https://perma.cc/5C2J-QESL].



ucts is miniscule. Thus, legislation of this nature is a small price to payfor human dignity.

VI. CONCLUSION

Many incarcerated women in the United States lack sufficient ac-cess to menstrual hygiene products. The denial of these necessaryproducts goes beyond an unfortunate consequence of incarceration; itis an attack on the dignity of women. Although not every woman pris-oner is subjected to this problem, those that are report humiliatingand degrading experiences. Additionally, when the provision of theseproducts is at the discretion of corrections officers, there are easy op-portunities for guards to abuse their power. When women are pro-vided these products, their needs are often still not met because of thelow quantity or quality. This causes many women to resort to alterna-tive methods of menstrual hygiene management. As a result, the wo-men are subjected to increased health risks. This problem alsonegatively affects women’s self-esteem and rehabilitation.

International communities have recognized that women prisonershave needs separate and distinct from men. Although the UnitedStates claims to be a leader in human rights, its penal system neglectsmany of the human rights of women. For example, the United Na-tion’s minimum standards for the treatment of women prisoners re-quire feminine hygiene products to be provided for free. Althoughthese standards are nonbinding, many countries have taken steps toimplement them into their criminal justice systems. By neglecting wo-men’s need for feminine hygiene products, the United States’ facilitiesare falling behind the international movement to uphold the rights ofwomen prisoners.

The judicial system has an obligation to protect the constitutionalrights of prisoners, but the solution to these women’s problems willprobably not be found in court. Prisoners can bring claims under theEighth Amendment for deprivations of medical care and unhygienicor unsanitary conditions. Lower courts have even suggested that dep-rivations of feminine hygiene products could rise to the level of anEighth Amendment claim under certain circumstances. However,even if a successful claim is made, the problem will not be solved be-cause courts give extensive deference to prison administrations whenanalyzing the constitutionality of prison regulations. Further, courtsexercise judicial restraint in correcting invalid regulations, giving thestates the first opportunity to correct the internal errors of prisonadministration.

Federal, state, and local governments have made efforts to solvethis problem, but no effort has been a complete solution. Correctivelegislation will be the most likely solution for women prisoners’ insuf-ficient access to feminine hygiene products. Because the federal and



state corrections systems operate independently, legislation is re-quired at both the federal and state level. Effective legislation shouldrequire multiple types and sizes of feminine hygiene products be pro-vided to the inmates at no cost. Further, the products must be of suffi-cient quality and provided in sufficient quantity to account forwomen’s individual needs. The legislation should also provide funds tothe appropriate department to aid in meeting the new requirements.These proposed ideas would provide the best solution for all womenprisoners who lack sufficient access to feminine hygiene products.

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